{ "id": 8554321, "name": "LLOYD M. FONVIELLE & WIFE, BARBARA B. FONVIELLE v. SOUTH CAROLINA INSURANCE CO., ROGER BENTON & DELORES BENTON", "name_abbreviation": "Fonvielle v. South Carolina Insurance", "decision_date": "1978-06-06", "docket_number": "No. 778SC546", "first_page": "495", "last_page": "500", "citations": [ { "type": "official", "cite": "36 N.C. App. 495" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "384 P. 2d 367", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1963, "opinion_index": 0 }, { "cite": "62 Wash. 2d 595", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 1036907 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/wash-2d/62/0595-01" ] }, { "cite": "150 S.E. 2d 496", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "268 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561783 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/268/0326-01" ] }, { "cite": "133 S.E. 2d 3", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "260 N.C. 402", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574951 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/260/0402-01" ] }, { "cite": "146 S.E. 2d 410", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1966, "pin_cites": [ { "page": "416" }, { "page": "415" } ], "opinion_index": 0 }, { "cite": "266 N.C. 430", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561069 ], "weight": 3, "year": 1966, "pin_cites": [ { "page": "437-8" }, { "page": "437" } ], "opinion_index": 0, "case_paths": [ "/nc/266/0430-01" ] } ], "analysis": { "cardinality": 551, "char_count": 12274, "ocr_confidence": 0.828, "pagerank": { "raw": 2.9532516038251823e-07, "percentile": 0.8490218927821661 }, "sha256": "632204d564cd3b8150fe9d217493d37207a27f40e5b0de6ef95307016059d6c5", "simhash": "1:b79ac48e0a6f9ed6", "word_count": 2052 }, "last_updated": "2023-07-14T17:02:41.791978+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Britt and Erwin concur." ], "parties": [ "LLOYD M. FONVIELLE & WIFE, BARBARA B. FONVIELLE v. SOUTH CAROLINA INSURANCE CO., ROGER BENTON & DELORES BENTON" ], "opinions": [ { "text": "CLARK, Judge.\nUnder the terms of the automobile liability policy issued by defendant South Carolina Insurance Company to the named insured, Roger Benton, Sr., the operator of the automobile, Delores Benton, owned by her brother, Roger Benton, Jr., at the time of the collision on 22 December 1974, was an insured if (1) Delores Benton was a resident of the same household of the named insured, and (2) Roger Benton, Jr. was not a resident of the same household of the named insured.\nThe term \u201cresident\u201d is not defined in the insurance policy. Such term, if not defined, is capable of more than one definition and is to be construed in favor of coverage. Insurance Co. v. Insurance Co., 266 N.C. 430, 146 S.E. 2d 410 (1966), has made this rule of construction clear:\n\u201cWhen an insurance company, in drafting its policy of insurance, uses a \u2018slippery\u2019 word to mark out and designate those who are insured by the policy, it is not the function of the court to sprinkle sand upon the ice by strict construction of the term. All who may, by any reasonable construction of the word, be included within the coverage afforded by the policy should be given its protection. If, in the application of this principle of construction, the limits of coverage slide across the slippery area and the company falls into a coverage somewhat more extensive than it contemplated, the fault lies in its own selection of the words by which it chose to be bound.\u201d 266 N.C. at 437-8, 146 S.E. 2d at 416.\nBut a rule of construction cannot supply a material element even in the case of a \u201cslippery\u201d term as long as the term has some meaning. Jamestown considered \u201cresident\u201d a slippery term but was able to give some definition to its material elements. Intent to remain at a place seems determinative, although not intent to remain permanently. It is clear that the intent necessary to show residence is not that necessary to show domicile. Jamestown, supra; Newcomb v. Insurance Co., 260 N.C. 402, 133 S.E. 2d 3 (1963). Jamestown, supra, citing 17A Am. Jur., Domicile, \u00a7 9, has it:\n\u201c \u2018 \u201cResidence\u201d has many shades of meaning \u2014 from mere temporary presence to the most permanent abode. Generally, however, it is used to denote something more than mere physical presence, in which event intent is material. \u201cResidence,\u201d as a legal term, is something more than the mere actual presence in a locality, even where it is not equivalent to domicile.\n* * *\n\u2018Any place of abode or dwelling place constitutes a residence, however temporary it may be, while the term \u201cdomicile \u201d relates rather to the legal residence of a person or his home in contemplation of law.' \u201d [Emphasis added.] 266 N.C. at 437, 146 S.E. 2d at 415. Also see 25 Am. Jur. 2d, Domicile, \u00a7 4.\nIn Jamestown, supra, an adult son, staying at his father\u2019s house until he found a place more suitable for his new job, was deemed a resident of his father\u2019s house. Newcomb, supra, emphasizing that residency is determinable on the basis of conditions existing at the time the accident occurs, considered a husband and wife, staying with the wife\u2019s mother until one of the adult sons returned, residents of the mother\u2019s household even though the couple had a cottage-home elsewhere.\nThe evidence relating to the residency of defendant Delores Benton was conflicting. But in light of the foregoing decisions we find the evidence sufficient to support the finding of the trial court that Delores Benton was a resident relative of the household of the named insured, her father Roger Benton, Sr.\nBut the only evidence which speaks to the issue of whether Roger Benton, Jr., was a resident of the household was Delores Benton\u2019s testimony that her brother lived in Brooklyn, New York, and disappeared after the accident, and his mother\u2019s testimony listing the children living in the household at the time of the collision, which list did not include either Delores or Roger, Jr. The trial court made no finding of fact on the issue of whether Roger Benton, Jr., was a resident of the household of his father, the named insured. Since there was no such finding, there was no support for the conclusion that Delores Benton was an insured under the policy.\nPlaintiffs make the argument that the burden of proof was on defendants to show that Roger Benton, Jr., was a resident of the household of the named insured, because the \u201cnon-owned automobile\u201d provision requiring that the owner of the automobile involved in the accident be a nonresident was an exclusion. In an action on an automobile liability policy, the burden is upon insured to show coverage, and, if insured relies upon a clause excluding coverage, the burden is on the insurer to establish the exclusion. Insurance Co. v. McAbee, 268 N.C. 326, 150 S.E. 2d 496 (1966); 7 Strong\u2019s N.C. Index 3d, Insurance, \u00a7 108. But although the \u201cnon-owned automobile\u201d provision, if not met, does exclude coverage, it is not itself an exclusionary provision. Unless a plaintiff alleges and proves facts sufficient to demonstrate the provision is met, he or she cannot be held to have made out a prima facie case for coverage, which case plaintiff must make before the burden to show non-coverage or exclusion is switched to defendant-insurance Company. McAbee, supra.\nThe evidence of Roger Benton, Jr.\u2019s, nonresidency may have been sufficient to support \u00e1 finding of nonresidency by the trial court, though the evidence from which Roger Benton, Jr.\u2019s, intent could be inferred was sparse. Jamestown, supra, quotes with approval from a Washington case, American Universal Insurance Company v. Thompson, 62 Wash. 2d 595, 384 P. 2d 367 (1963) to support the seemingly anomalous result in the application of the rule of construction mentioned earlier that construction of the term \u201cresident\u201d in favor of coverage might cause a court to define very broadly in one case and very narrowly in another. In a situation such as the one sub judice, the rule could lead to a narrow definition of \u201cresident\u201d so as to exclude Delores\u2019s brother and permit his car to be a proper \u201cnon-owned automobile\u201d while also leading to a broad definition of \u201cresident\u201d so as to include Delores as a covered relative operating a \u201cnon-owned automobile.\u201d\nFor error in the failure of the trial court to make proper findings of fact on the issue of the residency of Roger Benton, Jr., the conclusion that Delores Benton was an insured under the automobile liability policy was not supported by the findings of fact. The judgment is reversed and the cause remanded for a new trial on all issues consistent with this opinion.\nReversed and remanded.\nJudges Britt and Erwin concur.", "type": "majority", "author": "CLARK, Judge." } ], "attorneys": [ "Freeman, Edwards & Vinson by James A. Vinson III for plaintiff appellees.", "Taylor, Warren, Kerr & Walker by Robert D. Walker, Jr. for defendant appellants." ], "corrections": "", "head_matter": "LLOYD M. FONVIELLE & WIFE, BARBARA B. FONVIELLE v. SOUTH CAROLINA INSURANCE CO., ROGER BENTON & DELORES BENTON\nNo. 778SC546\n(Filed 6 June 1978)\nInsurance \u00a7 85\u2014 automobile liability policy \u2014 non-owned automobile \u2014 resident of same household\nIn an action to determine whether defendant daughter who had an accident while driving her brother\u2019s automobile was covered by a provision of defendant father\u2019s automobile liability policy covering a relative of the insured who is a resident of the same household as insured in the operation of an automobile not owned by a relative who is a member of the same household, the evidence was sufficient to support the court\u2019s finding that the daughter was a \u201cresident\u201d of the insured father\u2019s household at the time of the accident where it showed that the daughter had a job in Washington, D. C. and returned to her father\u2019s home at Thanksgiving and Christmas vacations in 1974; she had been at her father\u2019s home about two weeks when the accident occurred on 22 December 1974; the daughter considered her father\u2019s home as her home, still received her mail there and had a phone there listed in her name for which she did not pay; and before the accident, she intended to return to Washington to work. However, the court erred in concluding that the daughter was covered under the policy where the court made no finding as to whether the brother who owned the automobile was a member of the insured father\u2019s household.\nAPPEAL by defendants from Smith, Judge (David I.). Judgment entered 11 March 1977 in Superior Court, WAYNE County. Heard in the Court of Appeals 3 April 1978.\nPlaintiffs instituted a declaratory judgment suit to determine whether defendant-father\u2019s automobile liability insurance policy covered defendant-daughter who was driving her brother\u2019s automobile when she hit plaintiffs. The brother had no automobile insurance and plaintiffs had recovered under their own uninsured motorists coverage. Defendant-father\u2019s policy insured \u201c(b) with respect to a non-owned automobile, (1) the named insured, (2) any relative, but only with respect to a private passenger automobile or trailer, provided his actual operation or (if he is not operating) the other actual use thereof is with the permission, or reasonably believed to be with the permission, of the owner and is within the scope of such permission, . . .\u201d [Emphasis added.] The policy defined \u201crelative\u201d as \u201ca relative of the named insured who is a resident of the same household.\u201d [Emphasis added.] The policy did not define the term \u201cresident.\u201d It defined \u201cnon-owned automobile\u201d as \u201can automobile or trailer not owned by or furnished for regular use of either the named insured or any relative, other than a temporary substitute automobile; . . .\u201d [Emphasis added.] At pretrial conference, it was stipulated that the case would be decided without a jury, that defendant-father was a resident of 315 Denmark Street, Goldsboro, that defendant-driver Delores was his daughter, that she was driving her brother\u2019s car with his express permission and within the scope of that permission. Plaintiffs requested the following stipulation but did not receive it:\n\u201c(e) On the date of the accident as aforesaid, Roger Benton, Jr., [brother] was not a \u2018resident\u2019 as that phrase is used in the aforesaid automobile liability insurance policy and his 1973 Ford automobile was a \u2018non-owned automobile\u2019 as defined by policy #305 03 41 issued to Roger Benton, Sr.\u201d\nCounsel for the parties agreed that the following were the issues to be determined and declared by the court:\n\u201ca) On December 22, 1974, was Delores Benton a resident of the same household of the named insured, Roger Benton, Sr., within the meaning of that phrase as used and defined in automobile liability insurance policy #305 03 41?\nAnswer: __\nb) On December 22, 1974, was Delores Benton an insured of the Defendant, South Carolina Insurance Company, pursuant to the terms of its insurance contract, policy #305 03 41, insured to Roger Benton, Sr.\nAnswer:_\u201d\nAt trial plaintiffs presented both Delores Benton\u2019s deposition and her live testimony. Her testimony tended to show that she had lived with her parents until she was 20 or 21, that she then moved to a neighbor\u2019s house, staying there until moving to Washington, D. C. She found a job in a hotel in Washington and returned to her parents\u2019 home, in 1974, at Thanksgiving and Christmas vacations. She had been at her parents\u2019 home about two weeks when she had the accident. At the time of the accident, she considered her father\u2019s home on Denmark Street as her home, still received her mail there and had a phone listed in her name for which she did not pay. Before the accident, she intended to return to Washington to work. After the accident she decided to stay with them until she was better, until May 1975. She testified that her brother Roger, Jr. lived in Brooklyn, New York. Delores\u2019s mother testified that Delores was living in Washington and was only visiting at the time of the accident.\nThe trial court found:\n\u201c8. That from approximately two weeks prior to the date of the accident on or about December 22, 1974, until May, 1975, Delores Benton lived and was physically present in the home of her father, Roger Benton, Sr., at 315 Denmark Street in Goldsboro, North Carolina.\u201d\nThe court then concluded that Delores was a resident of her father\u2019s household at the time of the accident and was an insured of defendant-insurance company. From the order so adjudging, defendants appeal.\nFreeman, Edwards & Vinson by James A. Vinson III for plaintiff appellees.\nTaylor, Warren, Kerr & Walker by Robert D. Walker, Jr. for defendant appellants." }, "file_name": "0495-01", "first_page_order": 523, "last_page_order": 528 }